The court clarified the distinction between Sections 451 and 457 of the Cr.P.C., emphasizing the need to assess entitlement to possession rather than mere ownership in custody determinations.

ORDER

Petition is filed to quash Annexure-C order passed under Section 451 Cr.P.C.

2. Petitioner is a contractor who was supplying milk for MILMA during the period 2006-08. For the purpose of supply of milk, MILMA fitted “PUF” in the vehicle belonging to the accused. But, the petitioner stopped supplying milk with effect from 25.7.2007 and he did not return 'PUF' to MILMA. He, therefore, allegedly committed breach of trust by retaining PUF and not returning the same to MILMA in spite of repeated demands.

3. A crime was registered against petitioner on the basis of complaint given by MILMA alleging offence under Section 406 of IPC. The PUF was seized by the police. The de facto complainant as well as the accused filed petitions for interim custody of PUF under Section 451 Cr.P.C. Both the petitions were heard jointly and disposed of by Annexure-C order. As per the order, learned Magistrate released PUF to the interim custody of de facto complainant (respondent herein) on execution of bond etc. The said order is challenged in this petition.

4. Heard both sides. Learned counsel for petitioner argued that the impugned order is per se illegal for various reasons. No offence is attracted in this case since there is only mere breach of contract between the de facto complainant and petitioner which does not give rise to any offence. Learned counsel for petitioner also submitted that an article can be seized under Section 102 of Cr.P.C., only if there is suspicion of having committed an offence of theft or some other offence. The police has no power to seize the article if it is not involved in any offence. Therefore, registration of crime itself is illegal and consequently, the seizure of article also is illegal. The court below committed an illegality in releasing the article to the respondent without considering any of the relevant facts which ought to have been considered, it is argued. The seized article must go to the person from whose possession it is seized, it is argued.

5. Learned counsel for respondent argued that respondent is the owner of the article “PUF” and there is no illegality in releasing to respondent. It is also submitted that even if there is a breach of contract, going by petitioner's case itself, he will not have any right to have possession of the PUF after the expiry of the term of contract on 30.8.2008. Learned counsel for respondent also argued that even if the article is ordered to be given to petitioner he cannot use the same and the article will only be spoiled.

6. Learned Public Prosecutor, however, pointed out that Section 451 Cr.P.C. cannot be invoked in this case, since the article was not produced before court. It was seized during investigation but it was not produced before court, as seen from the order itself. So, in a case where a property is seized during investigation and such seizure is only reported without producing the property before court the Magistrate can invoke only the provision under Section 457 and not under Section 451 Cr.P.C.

7. Heard both sides. Perused the records. I find from the impugned order itself that property was not produced before court, as pointed out by learned Public Prosecutor. The property was seized by the police on registration of the crime against petitioner and hence the court ought to have invoked Section 457 Cr.P.C. and not Section 451 of Cr.P.C. A reading of Sections 451 and 457 Cr.P.C. shows that there is striking difference between the language used in Sections 451 and 457 Cr.P.C.

8. While under Section 451 the court is concerned only about “proper” custody of the property seized, under Section 457 , the court can make an order for delivery of such property to the person “entitled to the possession” thereof. That means, in cases in which Section 457 is involved, the court can deliver property only to the person “entitled to possession” of property. The question is not whether person will be a proper custodian of the article or not.

9. According to peti